Government by technicality

Let’s say the government is right, that a vote of the majority of the House of Common expressing no confidence in the government does not count as a vote of non-confidence: that although the House may have demanded “that the government resign,” it forgot to say “Simon says.” What does this mean?

It means that we now have a new form of government in this country: government by technicality. The government can no longer claim to govern with the consent of the governed, the traditional standard of legitimacy in a democracy. It governs with the consent of itself. It is the constitutional equivalent of a circular argument, a government that rules solely on the strength of its own assertions. It holds a new kind of power: the power of positive thinking.

A majority of members of the House clearly believe they have passed a motion of non-confidence. Yet the government, with the support of a minority of the House, assures them they are mistaken: no, no, no, old chaps, that’s not what you meant at all. No, trust us: what you meant was merely to instruct a committee to report back to the House with a demand that the government resign. But that doesn’t mean you want the government to resign. Trust us.

True, it would be ideal if the vote were on a “clear” motion of non-confidence, or a supply bill of some kind. But let us remember why we are in this situation, where the House is forced to ask for the government’s resignation by way of a report of one of its committees: because the government would not allow it to vote on anything else. Some weeks ago, it took the extraordinary step of suspending Opposition days, the one opportunity for someone other than the government to propose a motion, with a vague promise to reinstate them some weeks hence. For the past several days, it has been filibustering its own budget.

It is a statement of the disrepair into which our democratic institutions have fallen that a government should have the power to decide on its own when or if it will face the judgment of the Commons -- and having at last been corralled into a vote, to construe that judgment as it prefers. (Imagine if it were to interpret an election defeat in the same way: What’s that you say? We can’t hear you...) But it is a statement of how low this government has sunk that it would use that power.

A government that truly commands the confidence of the House does not have to invoke such legal niceties. It stands ready to face the House at any time, secure in the knowledge that a majority of its members support its program. It does not spend weeks on end hiding from the House, for fear that its awful secret will be exposed: that it is not actually a government, in the constitutional sense, at all, but merely a gang of press-releasers in temporary possession of the Treasury; that the Prime Minister is not the Great and Powerful Oz, but just an old man pulling levers.

It is often said that we live under a government of laws, not men. But at bottom, our system of government is not rooted even in law: it rests on convention. It is, after all, merely a convention that we obey the law; a law has effect because enough people observe the convention. The government may thus be able to withstand this defeat, in a strictly legal sense. But it does so only by doing immense violence to parliamentary convention: that broader, deeper law that says a government must be answerable to the House, that it governs only with the support of the House, and that it is for the House to decide when it has withdrawn that support, not the government. What we have now is a government in name only: legal but not legitimate.

There is only one way out of this. If the government is not persuaded by this vote that it must resign its commission, it must seek the House’s confidence at the earliest opportunity. That does not mean next year, or next month. It does not mean after the budget, or after the next by-election, or whenever the government finds convenient. It means today -- tomorrow at the latest. From this point on, every day it governs is another day closer to a full-blown constitutional crisis.

Comparisons have been drawn to the King-Byng affair. True enough, when Mackenzie King’s government fell in 1926, it was over an amendment to a committee report -- much like today, except in the former case the amendment did not call for the government’s resignation, but merely censured it. Yet even for a consummate bounder like King, it would have been unthinkable to carry on after such a motion had passed. In the event, it did not have to come to that: King resigned before the vote.

But in fact this is shaping up to be King-Byng in reverse. In King’s case, it was the Prime Minister who insisted on dissolving Parliament, and the Governor General who refused. Will the current Governor General have to dissolve Parliament over the objections of her Prime Minister?